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Bowe v. First of Denver Mortgage Investors

613 F.2d 798 (10th Cir. 1980)
Bowe v. First of Denver Mortgage Investors

7 Analyses of this case by attorneys

  1. The End of Self-Inflicted Appellate Jurisdiction

    Shook, Hardy & Bacon L.L.P.Andrew CarpenterJune 20, 2017

    How does this change the landscape in the Tenth Circuit? None. The Tenth Circuit had already long-held in Bowe v. First of Denver Morg. Investors, 613 F.2d 798, 801 (10th Cir. 1980) that voluntary dismissal cannot fabricate final decision jurisdiction. The Third, Fourth, and Seventh agreed, with the Ninth and Second Circuits weighing in on the opposite side.

  2. The End of Self-Inflicted Appellate Jurisdiction

    Shook, Hardy & Bacon L.L.P.Andrew CarpenterJune 13, 2017

    How does this change the landscape in the Tenth Circuit? None. The Tenth Circuit had already long-held in Bowe v. First of Denver Morg. Investors, 613 F.2d 798, 801 (10th Cir. 1980) that voluntary dismissal cannot fabricate final decision jurisdiction. The Third, Fourth, and Seventh agreed, with the Ninth and Second Circuits weighing in on the opposite side.

  3. Microsoft Wins Supreme Court Review of Class Certification Appeal Issue

    Montgomery McCracken Walker & Rhoads, LLPCharles CasperJanuary 21, 2016

    “So, what we have is a ‘death knell’ condition which is substantially similar to that which was present in Livesay.’” Bowe v. First of Denver Mortg. Investors, 613 F.2d 798, 801 (10th Cir. 1980). Ten years after that, the Second Circuit disagreed and upheld appellate jurisdiction, distinguishing Livesay because it did not involve a dismissal for failure to prosecute where “disappointed class representatives … risk forfeiting their potentially meritorious individual claims.”

  4. Cert Granted in Interesting Class Action Appeal

    Shook, Hardy & Bacon L.L.P.Sean P. WajertJanuary 16, 2016

    TASHIMA & WAGSTAFFE, FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 16:396 (2015); see also 6 CYCLOPEDIA OF FEDERAL PROCEDURE §23.46 (3d ed. 2015) (explaining that while some courts allow such appeals of de-certification orders, “other courts consider this result untenable, because it allows the putative class representative to evade the policy against piecemeal review by waiving his or her individual claims”). Five circuits have held that a court of appeals lacks jurisdiction to review a denial of class certification where the plaintiffs have voluntarily dismissed their claims with prejudice. E.g., Bowe v. First of Denver Mortg. Investors, 613 F.2d 798, 801 (10th Cir. 1980). The Third, Fourth, and Seventh Circuits have since adopted the same view.

  5. Baker v. Microsoft Corporation Revisited: Microsoft Seeks to Stop Class Action Plaintiffs From Shortcutting the Appeals Process

    Sheppard, Mullin, Richter & Hampton LLPJudy SuwatanapongchedMay 14, 2015

    [vi]Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), holding that, in line with Congressional policy against piecemeal appeals, the fact an interlocutory order may induce a party to abandon its claim before final judgment is not sufficient to consider the order a “final decision” under 28 U.S.C. § 1291.[vii]Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979), a Ninth Circuit opinion finding appellate jurisdiction lacking under similar procedural facts as Baker.[viii]SeeCamesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 245-46 (3d Cir. 2013); Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 100 (4th Cir. 2011); Telco Grp., Inc. v. AmeriTrade, Inc., 552 F.3d 893, 893-94 (8th Cir. 2009) (per curiam); Bowe v. First of Denver Mortg. Investors, 613 F.2d 798, 800-02 (10th Cir. 1980).

  6. Baker v. Microsoft Corporation Revisited: Video Gaming Company Seeks to Stop Class Action Plaintiffs From Shortcutting the Appeals Process

    Sheppard, Mullin, Richter & Hampton LLPJudy SuwatanapongchedMay 11, 2015

    es that the Ninth Circuit should rehear the issue of appellate jurisdiction because the panel decision conflicts with (1) Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), in which the U.S. Supreme Court held that, in line with the congressional policy against piecemeal appeals, the fact an interlocutory order may induce a party to abandon its claim before final judgment is not sufficient to consider the order a “final decision” under 28 U.S.C. § 1291; (2) Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979), a Ninth Circuit opinion finding appellate jurisdiction lacking under similar procedural facts as Baker; and (3) decisions rejecting appellate jurisdiction over class certification denials in the Third, Fourth, Eighth, and Tenth Circuits. SeeCamesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 245-46 (3d Cir. 2013); Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 100 (4th Cir. 2011); Telco Grp., Inc. v. AmeriTrade, Inc., 552 F.3d 893, 893-94 (8th Cir. 2009) (per curiam); Bowe v. First of Denver Mortg. Investors, 613 F.2d 798, 800-02 (10th Cir. 1980). Whether the Ninth Circuit grants Microsoft’s petition for rehearing en banc, and how it handles the shortcut strategy to appellate jurisdiction, could significantly affect how class actions are litigated in the Ninth Circuit because a class certification order often decides whether the case is settled or dismissed.

  7. Did The Ninth Circuit Just Give Plaintiffs—But Not Defendants—An Automatic Appeal From Class Certification Orders?

    Mayer Brown LLPApril 29, 2015

    The Fourth, Eighth, and Tenth Circuits agree that they lack jurisdiction over such an appeal. See Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 100 (4th Cir. 2011); Telco Grp., Inc. v. AmeriTrade, Inc., 552 F.3d 893, 893-94 (8th Cir. 2009) (per curiam); Bowe v. First of Denver Mortg. Investors, 613 F.2d 798, 800-02 (10th Cir. 1980). This conflict provides reason to believe that the Ninth Circuit should grant rehearing en banc.